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Court gives media new latitude

The Ontario Court of Appeal has given the media new freedom to publish information the public has a legitimate interest in knowing – stories which, until yesterday, news organizations might have avoided for fear of being sued for libel.

By Tracey TylerLegal Affairs Reporter

Wed., Nov. 14, 2007

The Ontario Court of Appeal has given the media new freedom to publish information the public has a legitimate interest in knowing – stories which, until yesterday, news organizations might have avoided for fear of being sued for libel.

In a decision described as a major breakthrough for freedom of the press in Canada, the court chiselled out what it calls a "new and distinctive" defence for journalists reporting on matters of public significance: The "public interest responsible journalism defence."

If a news organization can show it made every attempt to be fair and to confirm that the contents of a story are true, it has a defence to a defamation lawsuit, "even if it got some of its facts wrong," a three-judge appeal panel said in its unanimous decision.

The court said the traditional approach to the law of defamation – which favours the protection of a person's reputation over robust debate about public issues – is out of sync in a country such as Canada that values freedom of expression.

"Democracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those, such as police officers, who exercise power and authority in our society," said Justice Robert Sharpe, who wrote the judgment.

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In giving the media greater latitude to report on contentious issues, the court adopted the approach of courts in England, Australia, New Zealand, South Africa and the United States, all of which have leaned towards the free flow of information.

"The defence is plainly intended to shift the law of defamation away from its rigid reputation-protection stance to freer and more open discussion on matters of public interest and should be interpreted accordingly," said Sharpe, who was also writing on behalf of Justices Karen Weiler and Robert Blair.

The appeal court was ruling in a case involving former Ontario Provincial Police officer Danno Cusson, who sued the Ottawa Citizen and three of its reporters after the newspaper published a series of stories about his trip to New York in the aftermath of the Sept. 11, 2001, terrorist attacks.

Cusson went on his own initiative, with his dog, Ranger, to help in the search and rescue operations at the World Trade Center.

The stories quoted the canine co-ordinator of the New York State Police as suggesting Cusson had misrepresented himself as an RCMP officer and might have compromised the rescue operations because his dog wasn't properly trained.

The Citizen also reported that Cusson faced police disciplinary charges. Cusson also sued his OPP supervisor, Staff Sergeant Penny Barager, who was the source of some of the Citizen's information.

A jury awarded Cusson $125,000 in damages.

In an ironic twist, the court ruled yesterday that even though the law now recognizes a "public interest responsible journalism" defence, the Citizen cannot benefit from it and the jury decision must stand.

That defence depends on a news organization showing that it followed acceptable journalistic standards in pursuing a story and the issue of whether the Citizen followed standards of responsible journalism was simply never raised during the trial of Cusson's libel claim.

Since the justice system also values finality in legal proceedings and allows litigants just "one bite at the cherry," it would be inappropriate to reopen the case to allow the Citizen to claim the protection of the new defence, the appeal court said.

At the heart of the case was the scope of the media's "qualified privilege" to report on public issues.

In Canada, the media has an absolute right to report on proceedings of Parliament, provincial legislatures, courts and quasi-judicial tribunals. Even if statements uttered are false or harmful, the media cannot be sued as long as a report is fair and accurate.

In other situations, journalists have sometimes been able to claim a defence of "qualified privilege" — if they can show there's a broader interest in the publication of potentially defamatory information. But courts have often interpreted this defence narrowly.

Cusson's lawyers, Ronald Caza, Jeff Sarkaley and Marie-France Chartrand, urged the appeal court to follow the traditional, restrictive approach laid down in a series of Canadian court rulings from the 1950s to 1970s. That approach once denied a Saskatchewan newspaper the right to report on a speech by Premier Tommy Douglas, who accused his Liberal rival of defrauding farmers.

Meanwhile, the Citizen's lawyer, Rick Deardon, along with lawyers Brian Rogers, Peter Jacobsen and Adrienne Lee, representing media organizations who intervened in the case, urged the appeal court to bring Ontario libel law in line with the American approach set out in the famous New York Times v. Sullivan case.

That approach would require any person suing over a story that deals with a matter of public interest to prove actual malice.

"Malice is notoriously difficult to prove," said Sharpe, in deciding a balanced, middle-ground was more appropriate, "and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility."

The new approach in Ontario "amounts to a sensible half-way house," he said.

"The public interest responsible journalism defence recognizes that, in relation to matters of public interest, the traditional common law unduly chills freedom of expression but, at the same time, rejects the notion that media defendants should be afforded licence to defame unless innocent plaintiffs can prove deliberate or reckless falsehood."

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